Part 1 - The SEN System​

​What was the SEN system before?

Although the modern SEN system started in the early 1980s, the previous framework emerged in the 1990s with the Education Act 1993/1996 and the issue of an SEND Code of Practice (revised in 2001) known as the 'CoP'. The CoP has now become the “bible” of SEN for anyone involved with children with SEN.

What is the SEN system now?

There were many criticisms of the SEN system before. Parliament’s own Education and Skills Committee said in 2006 that the system was “not fit for purpose”. Five separate inquiries conducted about SEN/disability issues between 2006 and 2010 made other criticisms.

After a change of Government in 2010, a call for views led to an SEN Green Paper in 2011, promising “the biggest reforms to SEN in 30 years”. A subsequent SEN Green Paper became the Children and Families Act 2014 and a completely new SEND Code of Practice was issued, coming into law from 1 September 2014.

What were the main concerns about the previous SEN system?

Many people felt that getting children and young people with SEN the provision that they required had become a “fight” between parents and Local Authorities (LAs), with schools often caught in the middle. Getting a Statement of SEN was often an adversarial process. Parents also perceived that LAs had a conflict of interest, as they both assessed need and made provision.

There was criticism of the SEN system and particularly of statements in an Ofsted report in 2010 entitled: 'A Statement Is Not Enough'. Whilst the media sought to argue that it was about the over-identification of children with SEN, or poor quality teaching, the report also pointed out that there were low expectations of children with SEN and that the majority of these children needed more than a Statement.

So what were the main changes?

Whilst previously there were two school-based stages in mainstream schools for the majority of children without a Statement (known as School Action and School Action Plus), there is now only one, called SEN Support. Also, Statements were only for children and young people between the ages of two and 19 years who were in school, and they were focused on education.

However, statements have now been replaced by Education, Health and Care plans (EHCPs) which run from birth to 25 years. Whilst the test for getting an assessment is still the same as before, instead of conducting one for a Statement, or a Learning Difficulty Assessment (LDA) if the young person had already left school, LAs now assess children/young people for EHCPs.

What is the difference between a Statement and an EHCP?

Although there was a standard format for Statements prescribed by law, the Government has now left it to each LA to decide their own format for EHCPs (whilst maintaining control over its content). The fear is that this has led to 152 different EHCPs and that, although they are called Education, Health and Care plans, EHCPs are still only legally focused on education.

EHCPs are also not just meant to be Statements by another name, which now run from birth to 25.

So did Statements get replaced by EHCPs?

Yes and no!

Although no new Statements were issued after 1st September 2014, there were so many already in place that it was not practically possible for everyone to change to the new system immediately. Instead, the plan was to “transition” those children/young people currently with a Statement to an EHCP by April 2018 (and those with an LDA by September 2016).

The guidance stated that, where possible, LAs should transfer children at points in their education at which a significant review of the Statement would have taken place – for example, early years to primary, primary to secondary, secondary to post-16, mainstream to special school or vice-versa. LAs had to publish a transition plan by 1st September 2014 setting out details of how and when Statements/LDAs would be transferred to the new system.

Did everyone with a Statement get an EHCP and how were they transferred?

The legal test of when a child/young person requires an EHCP still remains the same as that for a Statement. It was expected that all children/young people with a Statement would be transferred to an EHCP. The Government stated that no child/young person should lose their Statement and not have it replaced with an EHCP simply because the system was changing. To transfer to the new system, LAs had to initiate a “transfer review” which included an EHC needs assessment. There was no need for the LA to seek further assessment reports if there were existing ones. A transfer review should have replaced the Annual Review in the academic year that the child/young person transfers to the new SEN system.

Were there any concerns?

There was an understandable fear amongst many parents that the new system may be an excuse for LAs to reduce the number of children/young people who will get an EHCP. There were also fears that there would be less children considered to have SEN. Following major financial cuts that LAs and others have experienced in recent years, many people also felt that it was an inappropriate time for such a big change. There was also concern that, although those working in education, such as schools and LAs, were familiar with the current system, those working in health and care, or in colleges and Further Education (who were now also covered by the new law) may not be ready.

Is it true that young people with SEN now have greater rights themselves?

Yes, young people over 16 are now able to request assessments and challenge decisions about themselves in their own right, provided they are deemed to have “mental capacity”. This is positive, especially as EHCPs now continue to 25. However, it is of some concern that when young people turn 16, their parents (typically their main advocates) may be unable to directly advocate on their child’s behalf.

Do parents still have a right to appeal if they disagree with the LA?

Parents still have the right to appeal to the Special Educational Needs and Disability (SEND) Tribunal against LA decisions. Young people over 16 now also have a right of appeal, in contrast to previous complicated legal proceedings if they wanted to challenge an LDA. Transitional arrangements stated that when an LA was conducting an assessment for a Statement/LDA before 1 September 2014, it could still treat it as an EHC assessment if everyone agreed.

​The transitional arrangements also stated that existing appeals against decisions not to assess/reassess/make a Statement could still be dealt with under the old system.